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2013 DIGILAW 1356 (ALL)

Hari Har Dutt Lal and Others v. Waris Ali

2013-05-08

ADITYA NATH MITTAL

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Aditya Nath Mittal, J.— Heard learned counsel for both the parties on Civil Misc. Application No.57233 of 2011. Application for additional evidence under Order 41 Rule 27 C.P.C. has been moved on the ground that Smt. Jaipali who had died issue less, had executed a registered will dated 19.11.1959 in favour of Shiv Kumar therefore, Harihar Dutt Lal the executor of alleged agreement to sell had no right regarding the property in dispute. The certified copy of the alleged will dated 13.11.1959 has been filed along with the application. Learned counsel for the appellants has further submitted that he shall not adduce any additional oral evidence. The application has been opposed by learned counsel for the respondents on the ground that it is a concocted story and no reason has been shown as to why the alleged will was not produced during proceedings before the lower Courts. Learned counsel for the respondents has relied upon Malayalam Plantations Ltd. Vs. State of Kerala and another 2011 AIR SCW 264 in which Hon'ble the Supreme Court has held that additional evidence cannot be permitted to be adduced so as to fill in the lacuna or to patch up the weak points in the case. Learned counsel for the respondents has also relied upon Parsotim Thakur and others Vs. Lal Mohar Thakur and others AIR 1931 Privy Council 143 in which it has been held as under :- "The provisions of Section 107 as elucidated by Order 41 Rule 27 are clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the court of appeal. Under Rule 27 clause (1)(b) it is only where the appellate Court 'requires' it (i.e. finds it needful) that additional evidence can be admitted. It may be required to enable the Court to pronounce Judgment, or for any other substantial cause, but in either case it must be the Court that requires it. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defeat become apparent'. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but 'when on examining the evidence as it stands, some inherent lacuna or defeat become apparent'. It may well be that the defeat may be pointed out by a party, or that a party may move the Court to apply the defeat but the requirement must be the requirement of the Court upon its appreciation of evidence as it stands. Whenever the Court adopts this procedure it is bound by Rule 27(2) to record its reasons for so doing, and under Rule 29 must specify the points to which the evidence is to be confined and record on its proceedings the points so specified. The power so conferred upon the Court by the Code ought to be very sparingly exercised, and one requirement at least of any new evidence to be adduced should be that it should have a direct and important bearing on a main issue in the case." It is the case of the appellants that during the pendency of second appeal the roof of one room of the deponent's house collapsed and the items were removed from the attic, a bag containing some papers was found in which, the photocopy of the registered will dated 13.11.1959 executed by Smt. Jaipali was also found. It cannot be said that the additional evidence is being filed with a view to fill up the lacuna or to patch up the weak point. The existence of registered will dated 13.11.1959 cannot be doubted in view of the certified copy which has been filed. It has also not been asserted that the said registered will was in the knowledge of Harihar Dutt Lal the executor of the agreement to sell. It has been clearly stated that the appellants came to know about the registered will only during the pendency of second appeal before this Court. It has been established that such evidence was not within the knowledge of the appellants even after exercise of due diligence. For the aforesaid reasons, the application is allowed and the appellant is permitted to file the additional evidence of registered will dated 13.11.1959 executed by Smt. Jaipali widow of Shyam Bihari Lal. Documents in rebuttal may be filed within four weeks. List in third week of July 2013 for hearing. _____________